Natesa Pillai vs Koneri Naicker and Another

M.M. Ismail, J.—The lands covered by Patta No. 55 in Naraiyaur Village in Tiruvannamalai Taluk belonged to one Thanji Ammal. She

mortgaged the same to the plaintiff for Rs. 700. On that mortgage, the plaintiff filed O.S. No. 7 of 1956 on the file of the Court of the District

Munsif of Tiruvannamalai and got a decree, executed it and himself purchased the property in Court auction. The sale was confirmed on 9th

February, 1959, and the plaintiff obtained delivery of possession on 6th March, 1960. On 12th June, 1959, the first defendant, Village Munsif of

Naraiyur Village suddenly went to the plaintiff''s house and demanded Rs. 9-75 as kist for fasli 1368, in respect of lands covered by Patta No. 55

and served a distraint order. The plaintiff represented that he was not liable to pay and that only Thanji Ammal was liable to pay. The first

defendant thereupon attached two bulls belonging to the plaintiff. In view of that, the plaintiff paid the sum of Rs. 9-75 to the first defendant under

protest and got the bulls released. Thereafter on 25th February, 1961, the plaintiff instituted O.S. No. 264 of 1961 on the file of the Court of the

District Munsif of Tiruvannamalai for recovery of the said sum of Rs. 9-75 from the first defendant and the State of Madras represented by the

Collector of North Arcot District at Vellore, impleaded as 2nd defendant. The defendants raised several defences and the learned District Munsif

framed the necessary issues arising out of the pleadings. The learned District Munsif by his judgment and decree dated 1st October, 1962, held

that the suit as far as the 2nd defendant (State of Madras) was concerned, was liable to be dismissed on the simple ground that the notice

contemplated by Section 80 of the CPC was not served. Though he also came to the conclusion that the State could not be made liable for the

tortious acts of its subordinates, the same was unnecessary, in view of his finding that the suit as such was not maintainable as against the State of

Madras. As far as the 2nd defendant was concerned the learned District Munsif came to the conclusion that the case came u/s 59 of the Madras

Revenue Recovery Act and the suit was barred by limitation with reference to the provisions contained in the said section. Against this judgment

and decree the plaintiff preferred A.S. No. 537 of 1962 on the file of the District Court, North Arcot District, which was transferred as A.S. No.

86 of 1963 on the file of the Court of the Subordinate Judge, Vellore, and was disposed of by the learned First Additional Subordinate Judge on

nth October, 1963. The learned Subordinate Judge disagreed with the conclusion of the learned District Munsif with regard to the question of

limitation against the first defendant and decreed the suit of the plaintiff as against the first defendant. Hence present second appeal by the first

defendant in the suit.

Mr. T. R. Ramachandran, learned Counsel for the appellant, contends that the conclusion of the learned Subordinate Judge on the question of

limitation is erroneous in law. The learned Subordinate Judge has expressly found that the suit did not fall within the scope of Section 59 of the

Madras Revenue Recovery Act. However, it is not clear by what Article of the Limitation Act the suit was governed, in the opinion of the learned

Subordinate Judge, since except referring to the argument advanced on behalf of the plaintiff that Article 36 of the Limitation Act applied, he

himself had not given a finding as to which Article of the Limitation Act applied to the suit. The contention of Mr. Ramachandran is that Article 36

has no application, but it is only Article 28 that is applicable to the suit in question. On the other hand, Mr. M. V. Krishnan, learned Counsel for

the plaintiff contends that the suit is really governed by Article 36 of the Limitation Act, 1908. Therefore, the question for consideration before me

is whether it is Article 28 or Article 36 of the Limitation Act, 1908 which applied to the suit, because, if it is Article 28 that is applicable, the suit is

barred by limitation and on the other hand, if it is Article 36 that is applicable, the suit is not barred by limitation.

The said Articles are:

_

In my opinion, the language contained in column No. 1 of the said two Articles itself indicates that it is Article 28 that applies to the suit instituted

by the plaintiff. The facts narrated above will clearly show that the complaint of the plaintiff was that the kist was not payable for the particular fasli

year in question by the plaintiff and it was payable only by Thanji Ammal and the first defendant illegally distrained his two bulls for recovering the

kist from him. Therefore, in my opinion, Article 28, being specific in relation to the cause of action of the plaintiff, is the Article which applied to the

present suit. Consequently the suit of the plaintiff* which was instituted on 25th February, 1961, when the distraint was effected on 12th June,

1959, was beyond the period of limitation prescribed by Article 28 of the Limitation Act, 1908.

Under these circumstances, I allow the Second Appeal, set aside the judgment and decree of the learned Subordinate Judge and restore those

of the learned District Munsif. There will be no order as to costs in the Second Appeal. No leave.